Self-Criticism from an Israeli, American, and Orthodox Jewish Perspective

Wednesday, August 8, 2007

A Talmudic Precedent for a Just Solution to the Israel-Palestinian Conflict

“Two are holding a garment. One says, ‘I found it’; one says, ‘I found it.’ One says, ‘All of it is mine’; one says, ‘All of it is mine.’ This one swears that he doesn’t own less than half of it; that one swears that he doesn’t own less than half of it, and they shall divide it.” (Mishnah Bava Mezi‘a 1.1)

Commentary

The case cited in the third-century rabbinic law code is one in which two people claim exclusive ownership of an article of clothing. The claims are set forth in court. Each side claims to own the entire article by virtue of finding it. In Jewish law, one who finds an article has an obligation to return it to its owner. If the owner cannot be found, the finder can usually keep it. One can infer from the text that neither claimant is the original owner; in any case, the question of another owner is not considered. On the contrary, ownership of the garment cannot be established.

This last point is an important one. It may be that claimant A is indeed the exclusive owner, and claimant B is mistaken. The likelihood of their being joint owners (say, they found and grabbed the garment simultaneously) is remote, though not impossible. But all that is irrelevant. The court does not recognize anybody as an owner.

What is to be done in such a case? First, each claimant takes an oath. In Jewish law, as in other systems of law, judicial oaths are administered in order to prevent false testimony and frivolous claims. Because of the willingness to take the oath we can assume that each side genuinely believes that it is the exclusive owner of the garment.

Why does each swear that he does not own less than half of the garment? Why not have each swear that he is the exclusive owner, if that is what he believes? One answer is that this would involve a falsehood, for it is impossible for both to be exclusive owners. The sides have to swear to claims that are in practice reconcilable. However – and this is important -- the claimants do not swear that they own exactly half -- because they actually believe that they own the whole garment. So by swearing that they do not own less than half, they do not publicly renounce their claims to ownership of the whole. By accepting the division, and by advancing more modest claims under oath, they signal to each other and to the court that they are willing to accept half.

All this is done before a court because the claims are irreconcilable and the claimants cannot come to a reasonable compromise, even one brokered by the court. This is a case where an agreed-upon compromise is impossible or impractical; the final ruling is imposed by a court that is neutral and expert.

You see where this is going, don’t you?

The Zionist and Palestinian nationalist movements have appeared before the international community as claimants to Palestine for close to a century. Each has claimed the right to exclusive hegemony over the territory of Palestine/the Land of Israel. To this day neither side recognizes the justice of the other side’s claims. One side – Israel – has made the other side’s recognition of the justice of its claims a precondition of its willingness to sign a peace treaty. In all the proposed Israel peace plans, the Palestinians have been required to recognize that Jews have a right to a state in Palestine, or that Israel has a right to exist as a Jewish state. This differs from the principle underlying the Mishnah, where neither side is forced to renounce publicly its belief in its exclusive ownership.

To require of the Palestinian people, as a precondition of their statehood, that they recognize the right of Jews to a state in Palestine, is about as reasonable as to require of the Jewish people, as a precondition for living with Christians, that they recognize the messiahship of Jesus. It is sufficient that both Palestinian and Israel sign a peace treaty. Neither has to yield its most cherished – and incommensurable – beliefs.

Second, we learn from the Mishnah that when two sides are unable to come to a fair agreement, an agreement is imposed. I say “fair” agreement because sometimes the balance of power is so lopsided that any mutual agreement perpetuates inequities. That is one of the reasons why I oppose Israeli-Palestinian bilateral negotiation – in the past, Palestinians, because of their relative weakness, have agreed to Israeli positions that do not begin to meet the demands of fairness, and hence, foster bitterness and hostility, the breeding grounds of terrorism and extremism, which in turn sow the seeds of the breakdown of the agreement.

Finally, the Mishnah rules that both sides divide the garment equally. Any peace settlement or agreement that favors one side at the expense of the other, or perpetuates existing inequities, is unjust – and bound to fail for the reasons mentioned above. And even without these bad consequences, an unfair agreement is wrong. Whether we are talking about two states, a binational state, or a federation, neither side can dominate the other. “Neither to rule or to be ruled” -- this was the leftwing Zionist slogan when the Jews constituted a fraction of Palestine’s population – and at the time it was dismissed by the Palestinians. As soon as the Zionists got the upper hand, they dismissed it as well. It is time to make that slogan a reality.

I have lived in Israel for over thirty years, and to this day, I know of virtually no Israeli within the so-called national consensus who favors a genuine two-state solution. Don’t believe what Benny Morris, Ehud Barak, Ehud Olmert, Tom Segev, Amos Oz, Shimon Peres, or any of the so-called Israeli “moderates” or “leftists” tell you. They are all in favor of a one-state/one-“state” solution, where the former is a powerful state with an independent economy, foreign affairs, and military, and the other is a “state-minus,” in which the Palestinians are allowed a certain degree of autonomy provided that they don’t pose a threat to the first state. Even the much-vaunted Geneva Initiative perpetuates inequities when it proposes that a Palestinian state be left without a modern Palestinian defence force, without making a similar demand of Israel – even though one hundred years of Zionism teaches us that the Palestinians have much more to fear from the Zionists than vice-versa. Only one side has ever actually wiped the other’s country off the map – and it wasn’t the Palestinian side.

Better we should go back to the Mishnah. An imposed solution of an equal division of territory, with neither side giving up its narrative or its most cherished beliefs, and with neither side coming out with more hegemony than the other – that is the ethical archimedian point from which we should begin to examine the situation.

I am not offering the Mishnah here as a practical legal precedent for international relations. Rather, I am using it to illustrate how one can bring Jewish tradition and precedent to bear upon this case. If one is concerned with a just solution, then there are certain minimum requirements of fairness. To see how those requirements stand behind elements of the Jewish legal tradition is of relevance in doing Jewish ethics. Some people learn those minimum requirements in kindergarten; others in cheder.

It seems to me that Jews who care about their Judaism should seek to invoke Jewish precedents as well as non-Jewish precedents when discussing the morality of the decision which calls itself Jewish. I am not saying that they have to – I don’t need to find a verse from the Torah to justify my ethical beliefs – but it looking for Jewish precedents is a legitimate exercise for those who value their tradition..

Of course, if you come up with the same solution via a different route, that is fine with me, too!

Ah, may I ask you to read the previous post,"Jewish Ethics and the Question of Justice for Palestinians and Israelis -- Part One" in which I distinguish between using the Talmud for legal precedent, and trying to understand the ethical assumptions on which the law is based. I am most definitely not asking the halakhic question, can a Jew cede territory of Eretz Yisrael to a gentile/idolater -- you can read David Bleich for that kind of stuff --- I am trying to talk about broad ethical principles of fairness that underly Jewish law.I guess I have to make that clearer. To me, we learn a lot more about Jewish ethics if we focus on what the sources tell us about relations between Jews, rather than between Jews and non-Jews. Again, this is not a halakhic question.By the way, I think the halakhic question eminently irrelevant to the situation.I guess I will have to explain why!

I appreciate the point, but are you proposing that it would be optimal for both sides of the Israel-Palestine conflict to reach an agreement that:

(1) does not recognize the legitimacy by either side of the other’s claim to the land (“Neither has to yield its most cherished – and incommensurate – beliefs.”); and

(2) is imposed by a third party, rather than the disputing parties, on the basis that “. . . sometimes the balance of power is so lopsided that any mutual agreement perpetuates inequities”?

If your argument is correct, and perhaps it is, it certainly flies in the face of more traditional notions of conflict resolution.

My worry would be that if Israelis and Palestinians reach an agreement without any mutual appreciation of the justice contained in the other side’s position, the peace would never hold. Two parties to a business dispute can sign a settlement agreement with a “No Admissions” clause and walk away equally disappointed in not achieving personal “justice,” but satisfied that reaching an agreement was worth the sacrifice because they’ll never have to see each other again. Israelis and Palestinians living just a stone’s throw (or mortar round) away from each other don’t have the same advantage.

The same argument applies to an agreement imposed by a “neutral” third party (even if such a party actually exists).

I think the Mishna you cited is a great starting point for an intra-Israeli discussion on the idea that Halacha recognizes situations where disputing parties with good faith claims should solve disagreements by means other than violence. But as a roadmap to peace, it’s a difficult approach.

"...even though one hundred years of Zionism teaches us that the Palestinians have much more to fear from the Zionists than vice-versa. Only one side has ever actually wiped the other’s country off the map – and it wasn’t the Palestinian side." [The Magnes Zionist]

Exactly which "country" do you contend was "wiped...off the map" by the "Zionists"? "Palestine"? If so, would you tell us: in what year (or era) the "country" of "Palestine" came into being and when exactly it ceased to exist; the location of its capital; and what were its established or claimed boundaries? Did the "country" of "Palestine" ever border on the newly created states of Lebanon, Syria, and Jordan? Was all or some of Gaza part of the "country" of "Palestine"? Who last governed the "country" of "Palestine" before it was "wiped...off the map," was it the "Palestinians"? And who previously held the reins of government as the penultimate ruler of that "country," was it "Palestinians" then, however long ago their reign began? If neither the last government of "Palestine," nor the one before it were truly "Palestinian" ones, then how far back in history must we go for the last truly "Palestinian" government of "Palestine," before it was "occupied"(?) and ruled by other than Palestinians?

I would ask you more questions about "Palestine" and its people before the "country" was "wiped...off the map," but let's being with the foundational ones above. If they can't be answered clearly and precisely, then I don't know how we are to understand your contentions about the history of "Palestine" and the conflict between "Zionists" and "Palestinians," if those are in fact two distinct, non-overlapping groups. (Don't most objective accounts of the history of the region describe the conflict pre-'48 as one between Arabs on one side and Jews or Zionists on the other, not as one between "Palestinians" on one side and Jews or Zionists on the other as you do?)

And as for who has had more to fear than the other, would you not agree that in the years before Israel came into being, more Jews were killed by Arabs than Arabs by Jews? (Please answer that one before moving to '48 and after.)

It is really confusing to have to respond to two different people who call themselves "Anonymous." I just posted separately a response to the second "anonymous" above.

As for the thoughtful and well-written comment by "Anonymous I" --I did not intend the Mishnah to be a concrete blueprint for negotiations, but a "precedent" for how to think about the Israeli/Palestinian dispute, based on the requirements of distributive justice.

As for the "worry" that "if Israelis and Palestinians reach an agreement without any mutual appreciation of the justice contained in the other side’s position, the peace would never hold," I do not share it. On the contrary, to require such a mutual appreciation would be counterproductive because it would immediately raise the ire of the ultranationalists on both sides. (The liberals wouldn't be bothered by it) In order to have a better chance of the peace holding, it needs to be supported -- or at least not actively opposed -- by a broad spectrum of groups, especially the fundamentalists. And to do this, one needs to finesse the ideological issue.Requiring the Palestinians to accept the justice of Zionism, because of Jewish existentialist fears, is unjust and counterproductive. Ditto for the Palestinians -- to require of the Jews to recognize that the justice of the Palestinian side is to require them to forego political Zionism. Liberals won't have the problems, but the nationalists will.

It is true that there is an important disanalogy between the case of the Mishnah and the case of bordering states: after dividing the monetary value of the garments, the claimants presumably go their separate ways, which will not happen in the case of Israel and Palestine under any circumstance. Had the law been, "each side will cover himself with half the garment" then the analogy would be better.

Still, religious and national groups with incommensurable worldviews and narratives live in close proximity, and even forge political coalitions with each other. It is not the conflicting claims of those groups per se that cause problems.

The Talmudic precedent is not sufficient for rendering justice to individuals.I am not proposing a Truth and Reconciliation Commission in which perpetrators do not pay for their actions; the efficacy of that model should be debated.

But I think it highly unlikely that a peace will hold or fail to hold because the sides have been forced by a peace agreement to relinquish historical dreams. By agreeing to respect the sovereignty of a Palestinian state over Palestinian territories, the state of Israel need not imply that the Palestinians' claim to those territories were more just than the Zionist claim.Still, this needs further thought on my part

I learned about your blog from Muzzlewatch and am thrilled at how sensibly, fairly, and ethically you approach the Palestinian-Israeli conflict.

Please let me know what you think of Parity for Peace, a proposal posted on the web under parityforpeace.org. This proposal calls for two states on the same land (a political condominium), with bilateral (50-50) governance in all matters of common concern and with equal access by all individuals to resources.

Jews could think of the whole place as as Israel, and Palestinians could think of the whole place as Palestine. Both nations could concentrate on what they have rather than on what they have lost, and perhaps this arrangement would be more palatable to the fundamentalists on both sides. People could live anywhere they wanted to, as there would be no territorial division between the states.

Palestinian refugees could return without affecting the Jews' right to self determination, because each nation would be guaranteed 50 percent of the power regardless of the size of its population.

Each state would have enough power to protect its interests but not enough to dominate the other.

Although this is similar to the bilateral state proposed by Buber and Magnes, it is different in allowing the two nations to each have a state. Statehood is so important to each side that this semantic difference is psychologically important. Statehood also provides a precedent for equality in decision-making between two or more states of different population sizes (as in the UN General Assembly), and there is some (although limited) precedence in two states sharing sovereignty of a single geographic entity.

The first chapters of Bava Batra, which deal directly with land disputes in which the concepts of possession and ownership are much more abstract and hard to pin down, than Bava Metzia, seem to offer a much better talmudic paradigm for addressing the issues you wish to address. The first chapter of BB spends several pages discussing laws of joint land ownership and situations in which one party can sue for a partition. Chapter 2 deals with the rights and obligations that neighbors have vis-a-vis one another. Chapter 3, the famed "Chazkas Habatim", is about establishing ownership through evidence of possession (chazakah) as supported by narrative (tayna). I've often considered that these chapters - taught with a focus on the Israeli-Palestinian conflict - should be taught in all Israeli high schools. I'd be happy to work with you on developing a curriculum.

I agree with the author that even the most "liberal" Zionists only want a mini-Palestine, dependent upon Israeli goodwill.

However an imposed Solomon solution in the way of partition will be as sensible as cutting the baby in two. Palestine (Eretz Israel) cannot be partitioned in any just or viable manner. Any form of partitioning will create asymmetries. Take the classical Gaza-West-Bank model of two discontiguous areas dependent oin Israeli good-will for their links. How can any Palestinian accept such permanent dependency on Israeli good will?

The only viable solution that I could envisage is one unitary country for Israelis and Palestinians, with Arabic as the dominant language and Hebrew and English as the other official languages. I see no other peaceful and lasting solution that is commensurable with human rights norms and with legitimate religious needs of Jews, Muslims and Christians.

I realize you actually aren't comparing the two cases. But just to be petty, this is more like תקפו כהן לפנינו.The basis of shnayim oychazim is that we have no knowledge of what the previous situation was. In a case where we do, grabbing it doesn't grant, or even imply possesion. Here there was an indigenous majority up until close to 48.Not to mention that this is חזקה בלי טענה. Or that the basis of shnayim oychazim is יכולה להיות אמת. And by שניהם אומרים אני ארגתיהthe law is different.